Photograph by Audree Notoras
Jim McGillivray, a staff attorney with Student Legal Services in Bloomington, says Hoosier renters have two legal protections for their damage deposits. Landlords must return deposits within 45 days. And they must conduct joint move-in and move-out inspections with their tenants.
It is move-out time. Pictures are taken off the walls, the carpet is vacuumed one last time, and all the counters are wiped clean. The landlord arrives for the move-out inspection. Move-in damages are compared to the state of the property now.
What appears to be the normal tear and wear of renting for a year can turn into deductions from a security deposit. And Jim McGillivray, IU Student Legal Services (SLS) staff attorney, says the definition of the normal wear and tear is broad.
"What we try to argue in court is that ordinary wear and tear is the sort of depreciation you would expect from that (type) of tenant and the number of tenants living in the premise for a year," he explains. "But what could look like normal wear and tear to one landlord can look like damages to another."
To protect themselves from damages, tenants need to read the fine print. They need to report damages as they occur, especially those out of their control, like a leaky sink or toilet base.
"One thing tenants have to remember is this is a business," McGillivray says. "The landlord is out to make profit. That's perfectly acceptable because it's the American way. They're not your friend, but they may be friendly. The vast majority of landlords are professional, courteous, business people who know how to get and keep tenants."
Bloomington renters have two sources of protection for their security deposits. The first is the 45-day rule. The second is the joint move-in and move-out inspection requirement.
Indiana law says that on termination of the rental agreement, a landlord shall return the tenant's security deposit, except for the amounts held for damages, within 45 days. The landlord must include an itemized list of charged damages.
McGillivray explains if the landlord goes over 45 days, not only does the tenant get the entire deposit back, but the landlord gets nothing. No damage charges. No unpaid bills.
The other arguable term in this ordinance is "specific." How specific should landlords be when listing the damages and charges? McGillivray says they cannot just write "other damages" and stick a number on the list. He has seen judges rule descriptions not specific enough.
"The landlord should say, 'Replace carpet due to burn marks,' not just, 'Replace carpets,'" he says. "Some judges don't find 'replace carpets' specific enough, and the tenant will win that part of the case."
The Bloomington housing code also requires scheduled joint inspections, both at move-in and move-out. The inspection should not be rushed, McGillivray advises.
"Be very careful in that main inspection to note every little thing so that a year from now, when that lease is up, you won't be blamed for something that's been there the whole year," he explains. "Like when that pane of glass in the window that had been cracked the entire year, the one you didn't notice during the move in inspection, is noticed, you can be charged. If it's not on the move-in inspection sheet and the landlord wants to fix it, they'll charge you."
Another major issue with security deposits is cleaning charges. The legal obligation is to only return the property in the same condition it was on move-in, McGillivray says. But leave it cleaner than you found it.
Taking pictures in an option tenants have to avoid disagreements over security deposits. With digital cameras, it is easy to have date stamps clearly defined on the picture. They are also easy to store and back-up.
"Cases we usually win include clients who are meticulous about recording what they've done," he says. "They've got pictures to show damages on move-in and how clean it was when they moved out. But how many folks take the time to do that sort of documentation?"
McGillivray says SLS lawyers see hundreds of landlord-tenant cases a year. Twenty-seven percent of their total caseload deals with renters' rights. Last year, they opened 298 of these cases. Some cases are negotiated outside of court, but others are taken in front of a judge.
"What could look like normal wear and tear to one landlord can look like damages to another."
- Jim McGillivray
Student Legal Services
"We always need to see the lease and what you've agreed to," he explains. "If you've agreed to it, chances are you're going to be bound to those terms. ... But some cases require this follow-up work by us."
Student Legal Services only serves students, McGillivray said. The Indiana Legal Services provides legal assitance to low-income and elderly citizens on housing and other issues, and the City of Bloomington Housing and Neighborhood Development department provides other assistance to any city renter.
When going to court, renters should be prepared. McGillivray has four recommendations for tenants.
First, keep a copy of the lease. It shows exactly what has been agreed in writing.
The second is to make sure the move-in inspection is thorough. It is hard for tenants to say, "That's been there all year," if it is not on the inspection sheet.
The third is to keep records. Save copies of maintenance reports as they are reported, save the lease and take pictures during move-in and move-out. McGillivray says he said-she said will not hold up in court. The better documentation the tenant has, the better the case will be.
The fourth, and final, recommendation is to bring witnesses from the outside to court.
"If mom and dad are coming with the U-haul to help move you back home, have them come inside and see if the clean-up is to their standards," McGillivray says. "If mom walks into the kitchen and starts gagging, it probably isn't clean enough."
But if it was clean, and parents were witnesses to that, get their statements, he explains. Third parties can help.
Landlords keep records throughout the year in ledgers, maintenance forms, leases, bill stubs and receipts. These are generally easy to prove.
And they may bring in people who did the repairs or experts on the type of repair done. The handyman that saw the apartment throughout the lease may be there.
McGillivray advises tenants to read the fine print in their leases about attorney fee provisions. Most leases have a clause that says if the landlord wins any part of the case, the tenant has to pay the attorney's fees.
"All of a sudden that $1,200 deposit issue is a $5,000 issue because every time we fight it, they hire a lawyer," he says. "If the landlord wins on any one thing, they get their attorney's fees. The judge can limit to reasonable attorney's fees, but the more we fight it, the higher the fees get."
In the end, it comes down to the renters communicating with the landlord and knowing what the terms are.
"Communicate with the landlord," McGillivray advises. "Don't let those little problems turn into big problems. Once that relationship goes south, once there's sort of bad blood, it can be extraordinarily difficult to get folks to be reasonable once they start taking it personally. Everybody's going to end up having a hard time."
Audree Notoras can be reached at email@example.com.